DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

WH
Docket: 10424-10
13 April 2011

From: Chairman, Board for Correction of Naval Records
Taz Secretary of the Navy

Subj: REVIEW_OF NAVAL RECORD [jy

Ref: fa) Title 10 U.S.C. 1552

 

1) DD Form 149 w/attachments

2) MILPERSMAN 1300-308

3) OPNAVINST 7220.12

4) CNO ltr 7220 Ser N130C/10U0850 of 22 Nov 2010

 

Encl:

 

 

1. Pursuant to the provisions of reference (a) Petitioner
filed enclosure (1) with this Board requesting, in effect,
that the applicable naval record be corrected to show that
he was granted a waiver of repayment of a debt established
after he was overpaid Basic Allowance for Housing (BAH)
while in Sasebo JN.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George, reviewed Petitioner's allegations of error and
injustice on 11 April 2011. After careful and
conscientious consideration of the entire record, the Board
found that the evidence submitted was sufficient to
establish the existence of probable material injustice and
determined that the corrective action indicated below
should be taken on the available evidence of record.
Documentary material considered by the Board consisted of
the enclosures, naval records, and applicable statutes,
regulations and policies. The Board also considered an
advisory opinion provided by the Chief of Naval Operations
Code N130 (hereinafter N130), attached as enclosure (4)
that recommended no relief be granted.

3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and
injustice, finds as follows:
Docket: 10424-10

a. In September 2006, Petitioner received Permanent
Change of Station (PCS) orders directing him to transfer
From Bahrain to Sasebo JN in November 2006. The orders
were considered “accompanied” orders because they
authorized his family to accompany him to the new duty
Station at government expense.

b. Under the regulations governing overseas transfer
orders, members are provided with an opportunity to elect
whether they desire to be accompanied by family members in
the overseas area. See enclosure (2). Also, in order to
receive BAH based on the dependent’s Continental United
States (CONUS) location, prior approval must be received
from the Commander Navy Personnel Command (PERS 451H). See
enclosure (3).

c. Petitioner transferred to Sasebo in November 2006.
His dependents were in Portland OR and did not join him
right away.

ad. Upon arrival, Petitioner checked in with the
Personnel Support Detachment (PSD) Sasebo. He was not
advised by the PSD to request BAH based on the dependent’s
Continental United States (CONUS) location. His tour
length was not adjusted from “accompanied” (36 months) to
“unaccompanied” (12 months). His CONUS BAH based on his
dependent’s location (Portland OR) was continued until 16
February 2007 when, pursuant to command sponsorship, his
family joined him in Sasebo. Because he lacked
authorization to receive BAH based on the dependent’s
Continental United States (CONUS) location, he was overpaid
BAH between approximately 30 November 2006 and 16 February
2007 in the amount of $2506.64.

e. In June 2009, Petitioner's spouse returned to
Portland OR at no expense to the Navy. The move was not
made pursuant to command sponsorship. After June 2009,
Petitioner once again erroneously received BAH based on the
dependent’s Continental United States (CONUS) location.
Because he lacked authorization to receive BAH based on the
dependent’s Continental United States (CONUS) location, he
was overpaid BAH between approximately 19 June 2009 and 30
April 2010 in the amount of $13,500.08.
Docket: 10424-10

f. In approximately April 2010, an audit of all
Sailors in Sasebo receiving CONUS BAH was conducted. At
that time, it was discovered that Petitioner was not
entitled to CONUS BAH because he was serving in Sasebo on
“accompanied” orders and he had no prior authorization to
receive BAH based on his dependent’s location. He had been
overpaid a total of $16,006.72.

g. The PSD Sasebo subsequently established the
overpayment as a debt.

h. In September 2010, Petitioner applied to this
Board seeking to have the debt for overpayment of BAH
waived.

i. By enclosure (4), N130 recommends no relief be
granted. Regarding the $2506.64 debt, N130 reasons that
Petitioner was not entitled to CONUS BAH because he was
serving in Sasebo on “accompanied” orders and had no prior
authorization to receive BAH based on his dependent’s
location. Regarding the $13,500.08 debt, N130 reasons that
Petitioner was not entitled to CONUS BAH because he was
serving in Sasebo on “accompanied” orders, he had no prior
authorization to receive BAH based on his dependent’s
location, and he returned his family at his own expense.
He was not required to return his family but elected to do
so voluntarily.

CONCLUSION :

Upon review and consideration of all the evidence of
record, the Board finds an injustice and concludes that
Petitioner’s request warrants favorable action. The Board
understood and carefully considered the comments made in
enclosure (4). However, it found that the following
factors militated in favor of relief. The PSD Sasebo erred
in November 2006 when it allowed the CONUS BAH to continue
even though there was no prior authorization from PERS 451.
Absent that error, Petitioner would likely have sought PERS
451H approval. The PSD Sasebo erred again in June 2009 when
it started the CONUS BAH even though Petitioner was serving
in Sasebo on “accompanied” orders, there was no prior
authorization from PERS 451, and Petitioner had returned
his family at his own expense. Additionally, the PSD
officer in Charge has confirmed that the erroneous payment
of BAH during these periods was at least in part,

 

tw
Docket: 10424-10

attributable to the PSD. He further opined that the
receipt of the BAH was not an effort by Petitioner to
defraud the United States. Also, due to its size,
enforcing the debt would create an extremely heavy
financial burden on a Second Class Petty Officer. For
these reasons, the Board finds that, Petitioner’s request
should be granted favorable action extending to waiver of
the $16,006.72 debt.

RECOMMENDATION :

 

That Petitioner’s naval record be corrected, where
appropriate, to show that:

a. The $16,006.72 debt caused by the overpayment of BAH
will be waived.

4. Pursuant to Section 6(c) of the revised Procedures of
the Board for Correction of Naval Records (32 Code of
Federal Regulations, Section 723.6(c)) it is certified that
quorum was present at the Board’s review and deliberations,
and that the foregoing is a true and complete record of the
Board’s proceedings in the above entitled Matter.

ROBERT D. ZSALMAN WILLIAM J. HESS,
Recorder Acting Recorder

 

 

5. The foregoing action of the Board is submitted for

your review and action.
Neel
Executive

The recommendation is reviewed and approved:

2) /

ROBERT L. fs Wet

Assistant General Counsel

(Manpower and Reserve Affairs) 4
1000 Navy Pentagon, Rm 40548
Washington, DC 20350-1000